Vicky Berry v. Houchen's Market of TN, Inc. and J. D. Easterly Properties

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 29, 2007 Session

VICKY BERRY v. HOUCHENS MARKET OF TENNESSEE, INC., d/b/a

Save-a-Lot Stores, and J.D. EATHERLY PROPERTIES

Direct Appeal from the Circuit Court for Davidson County

No. O4 C 2245 Hon. Barbara Haynes, Circuit Judge

No. M2006-02103-COA-R3-CV - Filed November 15, 2007

Plaintiff fell in a puddle of oil in the parking lot near the Save-a-Lot Market. The Trial Court

granted the market and the owner of the parking lot summary judgment. On appeal, we affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,

J., joined, and SHARON G. LEE, J., dissented and filed an opinion.

Michael H. Sneed, Nashville, Tennessee, for appellant.

Joseph M. Huffaker and Mary Beth Haltom, Nashville, Tennessee, for appellee.

OPINION

In this action, the plaintiff alleges she slipped and fell in the parking lot of a Save-A-

Lot market in Nashville, Tennessee and sustained personal injuries. The Save-A-Lot is owned by

defendant Houchens Market of Tennessee, Inc. (“Houchens”) The Save-A-Lot is located in a

shopping center, which, along with the parking lot is owned by defendant J. D. Eatherly Properties

(“Eatherly”).

Defendants filed a Motion for Summary Judgment, arguing that Houchens owed no

duty of care to plaintiff, plaintiff could not prove an essential element of the premise liability claim

against Eatherly, and plaintiff’s negligence equaled or exceeded the negligence of the defendant.

The Motion was supported by the deposition of plaintiff and an affidavit of J.D. Eatherly. In

plaintiff’s response, she said that defendant owed a duty under the premise liability “method of

operation” theory pursuant to Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004). She also filed

her affidavit and two photographs of the parking lot. She also filed affidavits of Jasmine Compton

and Clarence Edward Simpson.

At the hearing on the motion, the Trial Judge granted Houchens’ Motion, but the

Motion on behalf of Eatherly was denied.

Subsequently Eatherly filed a Motion to reconsider, and in its memorandum in

support it urged the Court to consider the premise liability principles set forth by this Court in

Thompson v. Ruby Tuesday, No. M2004-01869-COA-R3-CV, 2006WL468724 (Tenn. Ct. App. Feb.

27, 2006). The Trial Court then granted Eatherly’s Motion and dismissed the action on May 5, 2006.

On June 5, 2006 plaintiff filed a Motion to Alter or Amend on the ground that she had

new evidence that suggested both defendants had notice of the defective condition. Eatherly

responded that the Motion did not set forth why the “new evidence” could not have been produced

and presented before defendant’s motion was heard and adjudicated. This motion was denied and

plaintiff appealed.

Essentially, the facts regarding the accident are gleaned from the deposition of the

plaintiff, and the evidence regarding the status of ownership of the parking lot and the agreement of

lease between Houchens and Eatherly are set forth in the affidavit of J. D. Eatherly and the attached

lease.

On the date of the accident, plaintiff had two nieces, ages nine and ten, in the car

when she stopped at the Save-A-Lot with the intent of purchasing picnic supplies. She had not been

to this particular store for approximately two years before the accident, and drove her car into the

parking lot and parked in a space in front of the store. She got out of the car, closed the door and

started slowly to walk around her car. She walked approximately three to four feet and slipped and

fell in a puddle of oil in the parking lot. She claims to have not seen the oil on the ground before

stepping in it. She fell on her back in the puddle of oil and injured her right leg. She testified that

the back of her body, including her hair, was soaked in oil. Two elderly men, who had been sitting

in their cars in the lot, observed her fall and helped her to her feet. These men advised plaintiff that

a young man had just finished changing the oil in his car in the parking lot.

Plaintiff described the oil on the ground “it wasn’t no little bitty amount, it was like

a puddle of oil.” She described the oil as “dark black” and stated that the oil, which was darker than

the gray surface of the parking lot, was clearly distinguishable from the lot. Her explanation for not

seeing the oil until she was lying in it was that she was looking straight ahead and that she never

looks down when she is walking. She was questioned at her deposition:

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Q. But what would have kept you from seeing it had you been looking where

you were walking prior to stepping in it?

A. I don’t know. I don’t - - I have no idea. I mean, I’ve been like this all my

life. I mean, why all of a sudden would I - - oh, gee, there’s oil. I mean,

come on, man. I mean I’ve just been like this all my life. I never look down

when I’m walking. I always look straight ahead.

She agreed in her deposition that she did not know whether Save-A-Lot employees

or the owner of the parking lot had notice of the puddle of oil she fell into. She stated that she drove

by the lot after the day of the accident and it was in “filthy” condition. She acknowledged that she

could not speak to the state of the lot prior to the day of the accident as she had not been there for

two years prior to the accident. In her affidavit filed in support of her response to the defendant’s

motion she contradicts that last statement. In paragraph 4 of the affidavit she states:

4. The area of the store was generally kept unclean. I slipped in what I assumed

to be oil which caused me to fall. I did not see the puddle of oil prior to

stepping on to this substance. Attached hereto are copies of the photographs

taken shortly after the fall. The photographs show the general state of the

parking lot. The parking lot was rarely cleaned and generally was not swept

free of debris. . . .

The affidavit of Jasmine Compton, a teenager who lived near the parking lot, stated

that she had observed “oil and slick oil spots in the parking area.” The affidavit of Clarence Edward

Simpson, Sr., an employee of Save-a-Lot at the time of plaintiff’s fall, states: “[t]he lot was never

paved, cleaned or monitored to prevent people from the neighborhood from performing car

maintenance on the lot.”

J. D. Eatherly’s affidavit in support of their motion stated that Eatherly was the owner

of the property at issue at the time of the accident; the property was the subject of a lease agreement

with various tenants who leased store space on the property, including Houchens, and that under the

terms of the lease, the landlord was responsible for keeping the parking area and other common areas

of the property in orderly condition, clear of dirt, debris and snow. The tenant was responsible for

keeping the sidewalks and loading docks immediately adjacent to the leased premises free and clear

of dirt, debris or snow. He further stated that on September 28, 2002 the parking lot of the property

at issue served multiple tenants and that the lot was under the exclusive control of J. D. Eatherly

Properties. Eatherly also addressed the issue of whether Eatherly caused or had notice of the puddle

of oil. He stated that neither Eatherly nor its employees had notice of the puddle of oil or of any

dangerous or defective condition at the lot on the day of the accident; neither Eatherly nor its

employees caused the oil spill and that Eatherly had no knowledge that any employee of Houchens

caused the oil spill. Plaintiff’s deposition, considered in its most favorable light, together with

Eatherly’s affidavit, does not establish a material issue of material fact as to actual notice of the

puddle of oil.

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Summary judgment is appropriate only when the moving party demonstrates that

there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of

law. Tenn. R. Civ. P.56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). If both the facts and

conclusions to be drawn from such facts permit a reasonable person to reach only one conclusion,

summary judgment is appropriate. Robinson, 952 S.W. 2d at 426 (Tenn. 1997).

In Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004), the Supreme Court

reiterated the standards applicable when the appellate court reviews a motion for summary judgment:

Our task is confined to reviewing the record to determine whether the requirements

of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL &

Assoc., Inc., 15 S.W.3d. 83, 88 (Tenn. 2000); Hunter v. Brown, 955 S.W.2d 49, 50-

51; Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).

Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is

appropriate where: 1) there is no genuine issue with regard to the material facts

relevant to the claim or defense contained in the motion, and 2) the moving party is

entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d

at 88.

When the party seeking summary judgment makes a properly supported motion, the

burden shifts to the nonmoving party to set forth specific facts establishing the

existence of disputed, material facts which must be resolved by the trier of fact.

To properly support its motion, the moving party must either affirmatively negate an

essential element of the non-moving party's claim or conclusively establish an

affirmative defense. If the moving party fails to negate a claimed basis for the suit,

the non-moving party's burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary judgment must

fail. If the moving party successfully negates a claimed basis for the action, the non-

moving party may not simply rest upon the pleadings, but must offer proof to

establish the existence of the essential elements of the claim.

Blair, at p. 763-64.

In Blair the Court continued to follow the rule that a defendant who seeks summary

judgment must actually affirmatively negate an essential element of the plaintiff's claim or establish

an affirmative defense before the plaintiff's burden to produce evidence establishing the existence

of a genuine issue of material fact is triggered. A contention that a plaintiff cannot prove an essential

element of her claim does not actually negate that element. Hannan v. Alltel, No. E2006-013530-

COA-R3-CV, 2007WL208430 at *5l (Tenn. Ct. App. Jan. 26, 2007), perm. app. granted June 18,

2007. See, e.g., Lawson v. Edgewater Hotels, Inc., 167 S.W.3d 816, 823-24 (Tenn. Ct. App. 2004);

Hankins v. Chevco, Inc. 90 S.W.3d 254, 261 (Tenn. Ct. App. 2002).

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Defendant Houchens claims that as lessee of the premises, it owed no duty to Ms.

Berry to maintain the parking lot in a reasonably safe condition. The issue of whether a defendant

owed a duty to plaintiff is a question of law for the court. Blair v. Campbell, 924 S.W.2d 75, 78

(Tenn. 1996); Carson v. Headrick, 900 S.W.2d 685, 690 (Tenn. 1995). It is undisputed that

Houchens leased the building in which the Save-A-Lot was located from Eatherly, and that under

the terms of the lease, Eatherly, the landlord, was responsible for keeping the parking area and other

common areas of the property in “orderly condition, clear of dirt, debris, or snow”. Plaintiff did not

offer any evidence to dispute that the parking lot at issue served multiple tenants and was at all times

under the exclusive control of Eatherly.

It is well established that a landlord is responsible for the common areas under his

control and that “where [a] landlord retains possession of a part of the premises for use in common

by different tenants, the landlord is under a continuing duty imposed by law to exercise reasonable

care to keep the common areas in good repair and safe condition. Tedder v. Raskin, 728 S.W.2d 343,

347- 48 (Tenn. Ct. App. 1987). Although the landlord has the duty to keep common areas safe and

in good repair, a lessee also has a “duty to see that the leased premises and its approach is in a

reasonably safe condition.” Thompson v. Ruby Tuesday, Inc., No. M2004-01869-COA-R3-CV,

2006WL468724 at *3 (Tenn. Ct. App. Feb. 27, 2006 )(citing Gladman v. Revco Disc. Drug Ctrs.,

Inc. 669 S.W.2d 677, 678-79 (Tenn. Ct. App. 1984). However, this Court, in Thompson and

Gladman, declined to find that a lessee had a duty to a customer/invitee who was injured in the

parking lot of a shopping center when the lessee did not exercise control over the parking lot and the

lease with the shopping center lessor provided that the parking lot remained in the control of the

lessor.1 The facts in Thompson and Gladman are strikingly factually similar to this case. Plaintiff

1

This court also discussed as dicta the issue of a lessee’s duty under similar circumstances

to those present here in Munsey v. White Stores No. 45, No. 03A01-92030CV-00085, 1992 WL

361361 *2 (Tenn. Ct. App.1992): “Although there are holdings to the contrary, the majority rule is

that the lessee of a business establishment within a shopping center is not liable for injuries sustained

by a customer on a portion of the center premises not included in the leasehold, where the lessor has

the duty to maintain the area in question. See Frank D. Wagner, Annotation, Liability of Lessee of

Particular Premises in Shopping Center for Injury to Patron for Condition on Portion of Premises

Not Included in His Leasehold, 48 A.L.R. 1163, 1168 (1973 & Supp.). The majority of courts hold

that in such a situation the lessee is not liable. See Durm v. Heck’s Inc., 401 S.E.2d 908 (W. Va.

1991) (lessee not liable); Morris v. Scottsdale Mall Partners, Ltd., 523 N.E.2d 457 (Ind. App. 1988)

(lessee not liable); Raspilair v. Bruno’s Food Stores, Inc., 514 So.2d 1022 (Ala. 1987) (lessee not

liable); Garcia v. Arben Realty Co., 89 App. Div.2d 616, 452 N.Y.S.2d 665 (N.Y. App. Div. 1982)

(lessee not liable); Howe v. Kroger Co., 598 S.W.2d 929 (Tex. Civ. App. 5th Dist. 1980) (lessee not

liable); but see Wilson v. Allday, 487 So. 2d 793 (Miss. 1986)(lessee liable); Jackson v. K-Mart

Corp., 182 N.J. Super. 645, 422 A.2d 1087 (1981)(lessee liable).

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clearly stated that she fell in the parking lot and not on the sidewalk, and there is no evidence that

she fell in front of the door of the Save-a-Lot. This is not an ingress/egress circumstance. Based on

the principles set forth in Thompson and Gladman, the undisputed facts presented regarding the

relationship between Houchens and Eatherly, the terms of the lease and the location of the fall,

establish Houchens, the moving party, has negated an essential element of plaintiff’s claim, i.e., duty.

Plaintiff did not present any evidence that Houchens ever exercised any control over the lot, and as

Houchens no duty to Ms. Berry to maintain the parking lot in a reasonable safe condition, the Trial

Court correctly granted summary judgment to defendant Houchens.

In premises liability cases, the superior knowledge of the condition of the premises possessed

by the owner triggers liability. See Eaton v. Mclain, 891 S.W.2d 587, 592-94 (Tenn. 1994); Ogle

v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 46 (Tenn. Ct. App. 1995). Before the owner of the

premises may be held liable for negligently allowing a dangerous condition to exist on the premises,

the plaintiff must establish one of the following: “1) the condition was caused or created by the

owner, operator, or his agent, or (2) if the condition was created by someone other than the owner,

operator, or his agent, that the owner or operator had actual or constructive notice that the condition

existed prior to the accident”. Thompson, 2006WL468724 at *3 (citing Barron, 2006WL16310 at

*3).

The record before us does not establish that the condition was caused or created by

Eatherly or his agent. The affidavit of Eatherly further asserts that Eatherly did not have notice of

a dangerous condition in the parking lot on the day of the accident nor was Eatherly on notice of a

puddle of oil in the parking lot. Plaintiff did not refute that Eatherly did not have actual notice of

the puddle of oil. The second prong of the notice requirement, constructive notice, can be shown

“through proof that [a] dangerous or defective condition existed for such a time that in the exercise

of reasonable care, the owner should have become aware of the condition”, Thompson, or by

“showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating

the dangerous condition’s existence.” Blair, 130 S.W.3d at 765-766. Plaintiff has presented no

direct or circumstantial evidence, upon which a trier of fact could infer that the puddle of oil had

been in the parking lot for such a time that, in the exercise of reasonable care, Eatherly should have

become aware of the condition. The plaintiff’s testimony, in fact, was to the contrary. As she noted

in her deposition, she had been informed that a man had just changed his oil in the spot were she fell,

and she admitted that the oil could have been left there just seconds before she fell. But plaintiff in

her Response to Defendant’s Motion for Summary Judgment relies on Blair v. West Town Mall,

arguing that Eatherly had constructive knowledge of the puddle of oil. She argues that “[t]he parking

lot was used by individuals to perform automobile maintenance, and that this was a recurring

incident and it was common to occur at or around the time of plaintiff’s fall. She charges both

defendants were on notice of the use of the parking lot as an automobile maintenance facility and

that slick oil spots would be left on the lot.”

In Blair, the Supreme Court held that constructive notice can be found by showing

a pattern of conduct, a recurring incident, or a general or continuing condition, and said:

When the party seeking summary judgment makes a properly supported motion, the

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burden shifts to the nonmoving party to set forth specific facts establishing the

existence of disputed, material facts which must be resolved by the trier of fact.

To properly support its motion, the moving party must either affirmatively negate an

essential element of the non-moving party’s claim or conclusively establish an

affirmative defense. If the moving party fails to negate a claimed basis for the suit,

the non-moving party’s burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary judgment must

fail.

Blair, 130 S. W. 3d at 767 - 768. In this case as in Blair, Eatherly failed to affirmatively negate the

essential element of notice in plaintiff’s claim. The affidavit of J. D. Eatherly and the deposition

testimony of the plaintiff, do not affirmatively address the constructive notice issue described in

Blair. The affidavit did not set forth facts establishing that Eatherly regularly maintained, monitored

or inspected the parking lot. It did not address the issue of whether or not the parking lot was used

by the neighbors for vehicle repair and maintenance. Nor did it address the general or continuing

condition of the parking lot. Because Eatherly failed to affirmatively negate the element of

constructive notice, the burden of establishing the existence of genuine material facts for trial never

shifted to plaintiff.

Despite Eatherly’s failure to affirmatively negate the element of constructive notice,

the Trial Court’s granting of summary judgment was proper, as Eatherly’s motion for summary

judgment conclusively established an affirmative defense. Based on plaintiff’s deposition testimony

and comparative fault principals, plaintiff was fifty percent or more at fault for her accident and

injuries. See, McIntyre v. Balentine, 833 S.W. 2d 52 (Tenn. 1992); Lewis v. State, 73 S.W.3d 88,

94-95. Also see, Eaton v. McLain, 891 S.W.2d. 587-592 (Tenn. 1994).

In this case plaintiff testified she got out of the car on the driver’s side, closed the

door and started walking slowly around the car. Her explanation for not seeing the oil until she was

lying in it was that she was looking straight ahead and that she never looks down when she is

walking. According to her testimony, she slipped and fell into a considerable sized puddle of oil,

not just a spot or two of oil as discussed in the Blair case. The puddle was large enough to soak the

entire back side of her body and the back of her head. She described the oil as “dark black” and

stated that the oil, which was darker than the gray surface of the parking lot, was clearly

distinguishable from the surface of the lot. Like the plaintiff in Easley, she had a duty to see what

was in plain sight, a large, black puddle of what was clearly slippery oil, and to avoid walking into

it. While Eatherly clearly had a duty to maintain the parking lot in a reasonablely safe condition,

reasonable minds would not differ because of plaintiff’s absolute lack of attention to where she was

walking she was at least fifty percent responsible for her fall and subsequent injury.

Finally, plaintiff asserts that the Trial Judge did not articulate any reason for granting

summary judgment in favor of the defendants. This argument is without merit. Tennessee Rules

of Civil Procedure 56.04 provides that upon request the trial court shall state the legal grounds upon

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which the court grants the motion for summary judgment, but plaintiff did not make such a request.

Further, Tennessee Rules of Civil Procedure 54.01 provides that findings of fact and conclusions of

law are unnecessary on decisions of motions under Rules 12 and 56. Moreover, the appellate court’s

review of summary judgment is de novo, and the Trial Court’s reasons for its judgment, while

helpful, do not preclude this Court’s review of summary judgments. In this case, the appellate

record, without the Trial Court’s reason for judgment, was adequate for appellate review because it

provided a “fair accurate and complete account” of what transpired at the trial level. This issue is

without merit.

We affirm the Trial Court’s grant of summary judgment to both defendants, with the

cost of the appeal assessed to Vicky Berry.

_________________________

HERSCHEL PICKENS FRANKS, P.J.

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